premium Your complete learning package N A POWERED BY R C AS E V I G AT O Use the eText to link to Case Navigator, for help and practice with case reading and analysis in contract law In addition, access all of the self study resources for your complete learning package ■ Interactive multiple choice questions ■ Practice exam questions with guidance ■ Annotated weblinks ■ Glossary ■ Glossary flashcards ■ Animated diagrams with audio commentary ■ Legal newsfeed ■ Legal updates Turn over to find the access card that allows you to activate mylawchamber premium Case Navigator access is included with your mylawchamber premium registration The LexisNexis element of Case Navigator is only available to those who currently subscribe to LexisNexis Butterworths online Tenth Edition Law of Contract Paul Richards Law of Contract, part of the Foundations series, offers a comprehensive, clear and straightforward account of the law ideal for LLB or GDL/CPE students Written with the student reader in mind, each text is rich in learning features designed to illuminate complex legal principles and promote solid understanding and confidence in legal study Readers will gain a firm grasp of the essential concepts as well as an awareness of important recent developments in the law Each text in the series offers a wealth of study support features: • Chapter aims and objectives outline from the start what you will learn in each chapter • Case summaries highlight the central themes of key cases in the subject, clearly set apart from the surrounding text • Chapter summaries draw together the main concepts covered in each chapter, cementing understanding • Further reading lists at the end of each chapter direct students to subject-specific resources to enrich understanding • Marginal cross-references help the reader make connections within the text and aid understanding of how the material fits together • Glossary of important legal terms provides a handy reference tool • Easy-to-read presentation promotes comprehension premium Tenth Edition Law of Contract All our premium sites provide access to an interactive Pearson eText, an electronic version of Law of Contract which is fully searchable You can personalise your Pearson eText with your own notes and bookmarks, and extensive links are provided to the resources below The eText page presentation mirrors that of your textbook foundations series foundations series Tenth Edition Law of Contract Paul Richards premium ABOUT THE AUTHOR foundations series Richards PAUL RICHARDS is Head of the Department of Law at the University of Huddersfield He has had many years of experience as a lecturer in contract law, land law and trusts, and serves as an examiner and moderator for various examining bodies www.pearson-books.com Cover © Getty Images CVR_RICH3618_10_SE_CVR.indd 28/02/2011 14:04 Law of Contract foundations series Written with learning in mind, these texts allow students to gain a solid understanding of the law Each book presents the subject clearly and accessibly for effective and satisfying study The Foundations series comes with mylawchamber premium which provides online study support through: the interactive Pearson eText, Case Navigator, practice questions, online glossary and legal updates, all located at www.mylawchamber.co.uk Available from all good bookshops or order online at: www.pearsoned.co.uk/law premium Tenth edition Law of Contract PAUL RICHARDS Head of the School of Law, University of Huddersfield Pearson Education Limited Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at: www.pearsoned.co.uk First published 1992 Tenth edition published 2011 © Longman Group UK Limited 1992 © Pearson Professional Limited 1995 © Financial Times Professional Limited 1997 © Pearson Education Limited 1999, 2002, 2004, 2006, 2007, 2009, 2011 The right of Paul Richards to be identified as author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988 All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without either the prior written permission of the publisher or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland Law Commission Reports are reproduced under the terms of the Click-Use Licence Pearson Education is not responsible for the content of third party internet sites ISBN: 978-1-4082-5361-8 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Richards, Paul, 1951– Law of contract / Paul Richards – 10th ed p cm ISBN 978-1-4082-5361-8 (pbk.) Contracts – England Contracts – Wales I Title KD1554.R53 2011 346.4202–dc22 2010053166 10 14 13 12 11 Typeset in 9/12 pt Stone Serif by 35 Printed and bound in Great Britain by Ashford Colour Press Ltd, Gosport, Hampshire To Maggie with all my love for now and the future and to my brother Anthony Richards MBE for being there Brief contents Preface Guided tour Table of cases Table of statutes Part The formation of a contract The evolution and definition of the modern contract The fact of agreement Consideration Intention to create legal relations Capacity Formalities Part The contents of the contract The terms of the contract Exemption clauses xv xviii xx xxxvi 13 60 90 97 112 125 127 165 Part Factors that vitiate a contract 229 10 11 12 231 Misrepresentation Mistake Duress, undue influence and inequality of bargaining power Illegality 257 299 331 Part Discharge of contracts 369 13 Discharge by performance and breach 14 Discharge by agreement 15 Discharge by frustration 371 Part Remedies for breach of contract 417 16 The common law remedy of damages 17 Equitable remedies and limitation of actions 18 Quasi-contract and the law of restitution 419 394 399 466 477 vii BRIEF CONTENTS viii Part The rights and liabilities of third parties to the contract 491 19 Privity of contract 20 Agency 21 Assignment of contractual rights 493 Glossary Index 569 576 528 556 Contents Preface Guided tour Table of cases Table of statutes xv xviii xx xxxvi Part The formation of a contract The evolution and definition of the modern contract Aims and objectives Evolution Definition Summary Further reading 3 11 12 The fact of agreement 13 Aims and objectives Introduction Offer Acceptance The fact of acceptance The termination of offers Certainty of terms 13 13 16 26 28 44 51 Summary Further reading 55 58 Consideration 60 Aims and objectives Introduction The definition of consideration Consideration may be executed or executory but not past Consideration must move from the promisee though not necessarily to the promisor Consideration must be sufficient though not necessarily adequate 60 60 61 62 Summary Further reading 87 89 66 67 ix www.downloadslide.com INDEX British International Freight Association 203 British Rail 221 broader ground 503 –5 burden of proof 196, 241, 274, 305, 306, 307, 310–14, 421, 501 business efficacy 137, 139 business liability 188 – 91 calling for an explanation 308, 311–12 Canadian Court of Appeal 292 cancellation of contracts 515, 519 candour 312 capacity 97–111 corporations 104 – natural persons 97–104 power to enter into contract 97 carelessness 239, 274 carriage of goods by sea 181, 522, 523 cartels 361 causation 439 – 41 caveat emptor 7, 274, 275 certainty of terms 51–5 uncertain performing contract 52 – uncertain yet to be performed contract 52 cessation of assignment 559 chain of causation 452 see also causation champerty 337, 338 – Chancery Amendment Act 1858 438, 469, 472 change of circumstance 235 charges 559 chartered corporations 104 chattels cheques 84 chicken and egg question 32 choice of law clause 209 choices facing individuals 162 chose in action 506, 556 –7 legal and equitable nature of 558 circumvention 200 civil liability 337, 338 claims in quantum meruit 486 – restitutionary quantum meruit actions 486– use of quantum meruit within contract 487– clarifying terms of offer 31–2 Class 2A presumed undue influence 305, 307– Class 2B presumed undue influence 305, 308–11 classification of contractual terms 157– 61 choices facing the individual 162 innominate terms 158 – 61 warranties and conditions 157– classification of illegality 332 clogs and fetters on equity 360 coercion 299 –330 see also duress 578 cognisance of misrepresentation 237 cohabitation 340 –1 Cohen Committee 108 coincidence 15, 27 collateral contracts 49, 134, 135 – 6, 186, 344, 499 parol evidence rule 135, 136 terms or mere representations 135 – commencement of assignment 559 commercial agency agreements 362 commercial agents 545 – 52 compensation for termination of commercial agency 549 – 51 exclusive distributorship agreements 551–2 express provisions for remuneration and commission 547– restraint of trade 551 rights and duties of 546 –7 termination of commercial agency 549 Commercial Agents (Council Directive) Regulations 1993 545 –51 commercial arrangements 92–5 commercial expediency 537 commercial reality 15 commission 547– commission of act illegal in common law 336 –7 common initial mistake 259, 260 –72 as to existence of subject matter 260 –3 as to quality of subject matter of contract 264 –72 as to title 263 – common law concept of duress 300 – common law effect of frustration 408 –9 common law limitations on exemption clauses 184 – collateral contracts 186 misrepresentation 184 overriding oral undertaking 186 third parties 184 – common law negligent misrepresentation 240 –1, 249 damages for 249 Common Law Procedure Act 1852 478 common law remedy of damages 419 – 65 assessment of basis of award 420 –39 enforcement 419 limitations on availability of damages 439 – 62 common law rule 76 – common-sense test 440 communication of acceptance 37– 44 exceptions to general rule 38 – 44 general rule 37– communication of offers 25– Companies Act 1985 107, 108 Companies Act 1989 105, 107–9 capacity of the company 107 capacity of the company and third parties 109 capacity of directors 108 – see also Companies Act 2006 www.downloadslide.com INDEX Companies Act 2006 104, 105, 107–9, 500, 521, 535 company’s capacity 108, 109 and third parties 109 compensation for termination of agency contract 549–51 competence of principal 536 competition 351, 359 Competition Act 1998 361 complete transfer 562 –3 compliance 399 compositions with creditors 84 – compromise agreement 259 – 60 compurgation condition precedent 50 –1 conditional acceptances 30 –1 conditions 157– conferring valuable benefit 410 –12 confidential relationships 235– confidentiality 539 – 40 confidentiality clause 522 conformity 147 conscience of the court 323 consensus ad idem 6, 10, 16, 257, 259, 272 consensus mistake 259, 272 – 84 mutual mistake 272, 273 – unilateral mistake 272, 274 – 84 consideration 5, 10, 60 – 89, 478 – 82, 562 –3 definition of 61–2 diagram summarising key points 65 executed, executory but not past 62 –5 from promisee not necessarily to promisor 66 – sufficient not necessarily adequate 67– 87 total failure of 479 – 82 construction of covenants 354 – 63 application of covenants 357– 63 see also restraint of trade contracts construction test 401 constructive notice 318 construing contractual terms generally 174– background 176, 177 meaning of document 176 pre-contractual negotiations 177– prior negotiations 175 subsequent conduct of parties 175 construing exemption clauses 179 – 84 contra proferentem 179 – 80 liability for fundamental breach of contract 180–3 liability for negligence 183 – Consumer Credit Act 1974 114, 192, 195, 213, 214, 326 Consumer Credit Act 2006 214 –15, 326 consumer protection Consumer Protection Act 1987 192 Consumer Protection (Distance Selling) Regulations 2000 151– Consumers’ Association 221 contamination 207 contemplation of contract 487 contemplation of the seller 434 contents of the contract 127–228 exemption clauses 165 –228 terms of the contract 127– 64 contra proferentem 179 – 80, 208, 220 contract of adhesion see standard-form contracts contract contents 127–228 contract formation 3–124 contracting as agent 535 contracting in personal capacity 542 contracts contrary to public policy 337– 41 calculated to oust courts’ jurisdiction 339 prejudicial to administration of justice 337–9 prejudicial to status of marriage and family 340 sexually immoral contracts 340 –1 tending to corrupt public service 339 – 40 contracts discharged by breach 487 contracts of employment 357– contracts falling outside Frustrated Contracts Act 1943 412 –13 contracts for necessaries 98 contracts regarded as binding on minors 99 –101 beneficial contracts of service 100 –1 contracts for necessaries 98, 99 –100 Contracts (Rights of Third Parties) Act 1999 185 – 6, 496–7, 506, 516 –25 defences available to promisor 519 –21 effects of 522 –5 enforcing contractual terms 516 –19 excluded contracts 521–2 original party cancellation or variation of contract 519 other provisions relating to third parties 522 see also Law Commission Report on Privity of Contract 1996 contracts for sale of land 113, 114 –18 leases 113, 116 options 116 –18 contractual provisions for damages limitation 452 –8 deposits and forfeiture clauses 456 – liquidated damages and penalties 453 – contributory negligence 449 –52 conversion 281 converting partial to total failure of consideration 480 –2 cooling-off period 153, 155 Coronation cases 403 – corporations’ capacity 104 – avoiding effects of ultra vires 107 Companies Acts 1989 and 2006 107– doctrine of ultra vires 105 –7 types of corporation 104 579 www.downloadslide.com INDEX corporations, types of 104 chartered corporations 104 statutory corporations 104 corruption of public service 339 – 40 cost of cure 430 –3 counter-offers 29 –37 ‘battle of the forms’ 32 –7 clarifying terms of offer 31–2 conditional acceptances 30 –1 counter-restitution 304 Court of Chancery courts’ jurisdiction, contracts calculated to oust jurisidiction 339 Courts and Legal Services Act 1990 338 courts and terms implied by law 139 – 40 covenants 3, 354 – 63 creating binding agreement 13–15 creation of agency relationship 529 –36 agency by agreement 529 –30 agency of necessity 533 – apparent authority 530 –1 presumed agency 534 ratification 534 – usual authority 531–3 creditworthiness 281 Criminal Law Act 1967 338 criteria for apparent authority 530 –1 alteration of third party’s position 531 reliance on representation 531 representation 530 –1 Cromwell, Oliver 331 culpability 128 custom 133, 157 Customs and Excise 20 cynicism 423, 425 Daily Mirror 16, 168 – damages, assessment see assessment of award of damages damages for breach of contract 419 – 65 damages in lieu of rescission 132, 247– damages in lieu of specific performance 472 see also injunctions damages for misrepresentation 248 –51 fraudulent misrepresentation 248 – innocent misrepresentation 251 measure of damages under s 2(2) 251 negligent misrepresentation at common law 249 negligent misrepresentation under s 2(1) 249–51 damages for non-pecuniary losses 458 – 62 Davis, Bette 472 de minimis non curat lex 372 dealing as a consumer 188 –91 death 51, 195, 544, 556 –7 deceit 103, 240, 542 defences available to promisor 519 –21 580 defences of privity of contract 515 defining commercial agent 545 –52 definition of acceptance 26 –7 definition of contract –11 notion of a bargain and legal relations 10 –11 objectivity –10 degree of notice 167–71 adequate steps 167– nature of exemption clause 169 –71 degree of reasonableness of restraint 352 –3 other factors influencing 353 – as regards parties to contract 352 –3 as regards public interest 353 del credere agents 123 delegatus non potest delegare 539 delivery by instalments 381 demolition 405 – 6, 471 Department of Enterprise, Trade and Investment 156, 157 Department of Trade and Industry 224 deposits 456 – description of goods and condition 130 –1 destruction of contract’s subject matter 402 –3 detinue 3, 103 detriment 61, 82 development of the modern contract –12 definition –11 evolution – development of modern doctrine of frustration 400 – Dickens, Charles difference in value 430 – dilapidation 480 direct loss and/or damage 387– Director General of Fair Trading 156, 210, 212 –13, 221–2, 327 directors’ capacity 108 – disabilities 473 disbenefit 85 disbursement 206 discharge of contracts 369 – 415 discharge by agreement 394 – discharge by frustration 399 –415 discharge by performance and breach 371– 93 disclosure 235 – change of circumstances 235 confidential/fiduciary relationships 235 – of principal 536 statement is half the truth 235 discretion 247, 408, 469 – 71 discretionary jurisdiction 426 displays of goods for sale 18 –20 disposition of interest in land 113, 114 –18 dispute resolution 53 dissatisfaction 401 distributorship agreements 551–2 www.downloadslide.com INDEX divisible contracts 375 doctrine of frustration 399 – 415 see also frustration doctrine of laches 469, 518 doctrine of privity of contract 493 – 527 doctrine of promissory estoppel 78 – 84 acting to prejudice 83 nature of the promise 80 shield not a sword 80 – 82 suspensory or extinctive doctrine 82–3 doctrine of severance 220 doctrine of substantial performance 373 – doctrine of ultra vires 105 –7 avoiding effects of 107 doctrine of undisclosed principal 536 – effect of 538–9 factors preventing operation of 538 documents, need for contractual 166 –7 domestic arrangements 91–2 family arrangements 91–2 other social arrangements 92 double-intention criteria 516 drunks 98 due diligence 327 durability 146 duration of restraint 353 duress 299 –330 common law concept of duress 300 – equitable concept of undue influence 304–25 inequality of bargaining power 325 –7 duties of commercial agents 546 –7 duties owed by agent to principal 539 – 40 duties owed by principal to agent 540 –1 agent’s lien over principal’s property 541 agent’s right of stoppage in transitu 541 duty to indemnify agent for liabilities 540–1 remuneration for agent services 540 duties of principals 546 –7 e-commerce 23 – 4, 43 – 4, 151– early development of law of contracts 3–5 easement 116 economic duress 71–3, 77, 78, 85 –7, 302 – 4, 327 see also duress economic loss 444 economic value of consideration 66, 67 effect of frustration at common law 408–9 effect of independent advice 312 effect of silence 38 – effect of term’s being deemed ‘unfair’ 220 effect of undue influence on third parties 313– 23 avoiding constructive notice 316 –23 effectiveness of exemption clauses 184 – 223 effects of agency 536 – 43 agent and third party 542 –3 between principal and agent 539 – 41 between principal and third party 536 –9 making settlement with agent 541–2 effects of breach 382 – 90 loss of right to treat contract as discharged 389 – 90 right to affirm contract 382 – right to treat contract as discharged 386–9 Electronic Commerce (EC Directive) Regulations 2002 24, 44 employment contracts 357– encumbrance 141 enemy alien 536 enforcement 419 contractual terms 516 –19 requirement for contract in writing 114 engine of fraud 117 Enterprise Act 2002 361 entire contract 373 entitlement 548 equitable assignment 560 –3 consideration 562 –3 form of assignment 560 –2 joinder of assignor in action 560 notice 562 equitable concept of undue influence 304 – 25 actual undue influence 305– effect on third parties 313 –23 effects of undue influence 323 –5 presumed undue influence 304 –5, 306 –12 equitable estoppel 76, 78 see also promissory estoppel equitable nature of chose in action 558 equitable remedies 466 –72 injunctions 471–2 specific performance 466–71 see also limitation of actions equity 287–93 mistake in 287– 93 essentials of valid statutory assignment 564 absolute assignment 564 notice of assignment given to debtor 564 written assignment 564 European Communities Act 1972 107, 535 European law and agency relationship 545 – 52 defining commercial agent 545 –52 Everton Football Club 101 evidencing contracts in writing 118 –23 Law of Property Act 1925 118, 119 Statute of Frauds 118 –23 evolution of the modern contract –9 early development –5 modern era – nineteenth century – present day – 581 www.downloadslide.com INDEX ex hypothesi 401 ex turpi causa 332, 349 exceptional circumstances 316 exceptions to general rule of acceptance 38 – 44 e-commerce 43 – effect of silence 38 – instantaneous forms of communication 42–3 postal rule 39– 41 exceptions to past consideration rule 63 –5 statutory exceptions 64 –5 exceptions to privity of contract effect of third party actions on contracts 513 imposing obligations on third party 506 –13 exceptions to rule in Pinnel’s case 78 – 85 cheques 84 compositions with creditors 84 – doctrine of promissory estoppel 78 – 84 exclusion of assignability 566 exclusion of liability for misrepresentation 252 exclusive distributorship agreements 551–2 exclusive trading 359 – 61 executed consideration 62 executory consideration 62 exemption clauses 135, 165–228, 510 –13 construing 179 – 84 future of, and unfair terms 224 incorporation into contract 166 –72 other factors limiting effectiveness of 184 –223 protecting third parties in 510 –13 exercise of discretion 469 –71 exercise of severance 364 –5 existence of principal 535 existence of subject matter 260 –3 see also common initial mistake existing contractual obligation owed to defendant 71– owed to third parties 74 – expectation loss 420 –2 expected readiness to load 159 – 60 expediency 52 expenses, outstanding 364 express authority 529 express contractual terms 128 –36 collateral contracts 134, 135– incorporation of statements 128 –35 express exclusion of assignability 566 express provision for discharge 396 –7 express provision of frustration 408 express provisions for remuneration and commission 547– expropriation 411 extemporaneous excressence 118 extension of limitation period by acknowledgement 474 extinctive doctrine 81–2 extinguishment by agreement 394 582 extortion 84 extrinsic evidence 132 fact of acceptance 28 – 44 communication of 37– 44 counter-offers 29 –37 mode of acceptance 28 – fact of agreement 13 –59 fact and implied terms 137– fact of the inducement 236 – misrepresentation must be material 236 –7 reliance 237– factors affecting operation of doctrine of frustration 407– factors influencing degree of reasonableness of restraint 353 – factors limiting effectiveness of exemption clauses 184 –223 factors vitiating the contract 231– 68 duress, undue influence, inequality of bargaining power 299 –330 illegality 331– 68 misrepresentation 231–56 mistake 257– 98 failure of condition precedent 50 –1 fair and open dealing 215 Fair Trading Act 1973 326 falsehood 238 family arrangements 91–2 Family Law Reform Act 1969 98 family status and illegality 340 fault 449 – 52 fiduciary relationships 235 – 6, 307 financial adjustment 410 –12 fitness of purpose 147, 166 flexibility of law in dealing with restraints 362 – floodgates argument 514 Football Association 101 force majeure clauses 400, 408 foreseeability 446 – forfeiture clauses 135, 456 – form of assignment 560 –2 form of discharge 395 –7 express provision for discharge 396 –7 rescission and variation 395 – waivers 396 formalities 112– 24 contracts evidenced in writing 118 –23 contracts made by deed 113 contracts in writing 114 –18 incomprehensible language 112 formation of a contract –124 capacity 97–111 consideration 60 – 89 evolution and definition of modern contract –12 www.downloadslide.com INDEX formation of a contract (continued) fact of agreement 13 –59 formalities 112 –24 intention to create legal relations 90 – fraud 73, 84, 85, 86, 102–3, 117, 156, 473 – fraudulent misrepresentation 132, 239– 40, 248– damages for 248 – freedom of contract – freehold land 507 frustrated contracts 486 frustration 399 – 415, 544 applications of doctrine 402 –7 development of modern doctrine 400 –2 factors affecting operation of doctrine 407– legal effects of doctrine 408 –13 strict compliance 399 fundamental breach of contract 180 –3 fundamental mistake at common law 259 – 86, 288–91 common initial mistake 260 –72 consensus mistake 272 – 86 mistakes of law 259 – 60 future of exemption clauses and unfair terms 224 Law Com No 292 224 gain based damages 428 –9 general form of statutory assignment 563 –4 general principles for recovering moneys paid 479 general principles of restraint of trade 351–2 general rule of acceptance 37– general rule of discharge 394 good faith 212–15, 236, 326, 379, 546 goodwill 494 gratuitous privilege 80 gratuitous promise 60, 113 guarantees 104, 119, 120 part of larger transaction 122 –3 Guardianship Act 1973 340 guilty intention 336 Gulf War 404 –5 half-truths 235 handling contractual documents 166 High Court of Australia 27 ‘Himalaya’ clauses 511–13, 522 hire purchase 52, 192, 195 Hire Purchase Act 1964 277, 279 hiring 192, 195 history of privity of contract 493 – HM Revenue & Customs 85, 260, 337, 363– 4, 438–9 holder in due course 500 homosexuality 315, 319 housing benefit 271–2 identity of person contracted with 275 – 86 unilateral mistake as to 275 – 86 ignorantia juris neminem excusat 232 –3, 344 illegality 331–68, 405 acts illegal at common law 335 – 41 acts illegal by statute 332 –5 classification of 332 effects of 341–7 and frustration 405 Law Commission and reform of illegality defence 347– 51 severance 363 –5 unlawful manner of performance 333 – very thing principle 350 illiteracy 168 impecuniousness 77 implied agreement to pay 488 implied authority 529 –30 general 529 incidental authority 529 –30 implied contractual terms 136 –57 by custom 157 by way of Consumer Protection (Distance Selling) Regulations 2000 151– by way of Sale and Supply of Goods to Consumer Regulations 2002 156 –7 as matter of fact 132 – as matter of law 139 – 41 under Late Payment of Commercial Debts (Interest) Act 1998 150 –1 under Sale of Goods Act 1979 140, 141– under Supply of Goods and Services Act 1982 148 –9 importance of statement 130 imposition of contractual liability 38 –9 imposition of public duty by law 69–71 impossibility of restitutio in integrum 246 in personam 466 in terrorem of 453 in toto ratification 536 in transit inability to comply with specified manner of performance 404 inadequate consideration see principle of sufficient consideration incidental authority 529 –30 Income and Corporation Taxes Act 1988 438 incompleteness 134 –5 incomprehensible language 112 incorporation of exemption clauses into contract 166–72 by notice 166 –72 by previous course of dealing 172 – by signature 166 incorporation of statements 128 –35 custom 133 importance of statement 130 incompleteness 134 –5 invalidity 133 583 www.downloadslide.com INDEX incorporation of statements (continued) non-operation 133 parol evidence rule 132 –7 rectification 133 reduction of contract into writing 129 –30 special knowledge or skill 130 –2 timing 129 indemnity 121–2, 193 –5, 244 –5, 540 –1 for agent’s incurred liabilities 540 –1 bars to rescission as remedy 245 –7 damages in lieu of rescission 247– and rescission 244 – independent advice 212, 312, 315 –23 inducement 231– 56 see also misrepresentation Industrial Revolution – inequality of bargaining power 325 –7 see also duress Infants Relief Act 1874 102, 104 inference 129 inferred conduct 28 –9 initial mistake see common initial mistake injunctions 221–2, 419, 471–2 damages in lieu of 472 nature of remedy 471 prohibitory injunctions 471–2 innocence defence 241, 248 innocent misrepresentation 239, 241, 251 innominate terms 158 – 61, 373 insanity 98, 544 instantaneous forms of communication 42 –3 insurance 187, 201–2, 207, 243, 336, 561 intention 175, 176, 178 intention to create legal relations 90 – 6, 234 – commercial arrangements 92–5 social and domestic arrangements 91–2 will of participants 90 intentional submission 302 inter absentes 278, 281, 286 inter praesentes 281, 282, 286 interests arising in land 506 –7 freehold land 507 leasehold land 506–7 interlocutory injunction 221 intermediate term see innominate terms interpretation 175, 176 intervention of third parties 246 –7 intoxication 98 invalidity 133 invitations to treat 17–24 advertisements and other notices 18 auction sales 20 displays of goods for sale 18 – 20 e-commerce 23 – tenders 20 – 584 ticket cases 22–3 see also offers irrevocable authority 545 authority coupled with interest 545 personal liability incurred by agent 545 powers of attorney 545 Jenkins Committee 108 joinder of assignor in action by assignee 560 Judicature Acts 1873 –75 558, 560, 563 killing the original offer 32 –5 King’s Bench King’s writ 90 knowledge of material facts 536 laches 469, 518 lack of awareness of truth of misrepresentation 239 lack of conformity 147 laissez-faire 6, 13 –14 land 187 Landlord and Tenant Act 1985 386, 468 language – intelligent, need for 219 –20 lapse of time 50, 129, 245 –6 larger transactions 122–3 del credere agents 123 protection of property 123 last shot principle 33 –5 Late Payment of Commercial Debts (Interest) Act 1998 150 –1, 223 Law Com No 242 see Law Commission Report on Privity of Contract 1996 Law Com No 292 see Law Commission Report on Unfair Terms in Consumer Contracts 2005 Law Commission and reform of illegality defence 347–51 Law Commission Report on Privity of Contract 1996 516 – 25 Law Commission Report on Unfair Terms in Consumer Contracts 2005 224 law and implied terms 139 – 41 by courts 139 – 40 by statute 137, 140 –1 law merchant Law of Property Act 1925 113, 114, 115, 118, 119, 375, 457, 506 –7, 561, 563 – s 56(1) 506 Law of Property (Miscellaneous Provisions) Act 1989 114, 115, 117–18, 135, 152, 529, 561 Law Reform (Contributory Negligence) Act 1945 450 Law Reform (Enforcement of Contracts) Act 1954 118 Law Reform (Frustrated Contracts) Act 1943 410 –13, 480, 486 contracts falling outside Act 412 –13 financial readjustment 410 –12 recovery of money paid 410 www.downloadslide.com INDEX Law Reform (Miscellaneous Provisions) Act 1970 340 Law Revision Committee 513 –16 lawful act duress 303 lease-back 360 –1 leasehold land 506 –7 leases 113, 116, 385– 6, 405 –7, 524 problem of frustration in 405 –7 legal effects of frustration 408 –13 at common law 408 –9 general rule 408 Law Reform (Frustrated Contracts) Act 1943 410–13 legal leases 116 legal nature of chose in action 558 legal relations 11, 90 – letters of comfort 94, 122 liabilities, assignment 567 liability of agent 542 –3 liability arising in contract 192 –3 liability arising in negligence 191 liability for fundamental breach of contract 180–3 liability for misrepresentation 252 liability for negligence 183 – lien 141, 541 life assurance 561 limitation of actions 473 – extension by acknowledgement or part-payment 474 Limitation Act 1980 473 – postponement in cases of fraud or mistake 473– suspension of 1980 Act by virtue of disability 473 see also equitable remedies limitation clauses 165, 205 – Limitations Act 1980 64, 473 – 4, 482, 484, 522 actions for an account 473 actions founded on simple contract 473 actions founded on specialty contract 473 limitations on availability of damages 439–62 causation 439 – 41 contractual provisions 452– contributory negligence 449–52 mitigation of loss 448 – remoteness of damages 441– speculative and non-pecuniary damages 458– 62 limitations on use of prohibitory injunctions 472 limiting effectiveness of exemption clauses 184–223 common law limitations 184 – statutory limitations 186 –210 Unfair Terms in Consumer Contracts Regulations 210 –23 linguistic mistake 178 liquidated damages 453 – litigation 76 loan-swap 482 locus poenitentiae 345 London Stock Exchange 529 Lord Cairns Act 438 loss of amenity 432 loss mitigation 448 – loss of right to treat contract as discharged 389 – 90 lost opportunity 428 lotteries and gaming 331 main object and intent 181 main part of contract is legal 364 maintenance 337 making an order for specific performance 467–71 making contract by deed 113 making settlement with agent 541–2 settlement by principal 542 settlement by third party 541 manifest disadvantage 310, 311–12 manifest inconvenience 41 manufacturers’ guarantee 191 marine salvage 187 Marks & Spencer 80 Married Women’s Property Act 1882 500 material facts 536 material misrepresentation 236 –7 materiality 236 –7, 339 ‘matrix of fact’ 176 meaning of document 176 measure of damages under s 2(2) 251 memorandum 119 memorandum of association 105–9, 114, 115, 500 mental distress 459 – 60 Mental Health Act 1983 98 mentally disordered persons 98, 544 those certified insane 98 those not certified insane 98 merchantable quality 140, 142 –7 mere representations 128 – 9, 131, 135, 231 see also misrepresentation meticulous examination 310 microscopic deviations 372 Millennium Dome 387– minorities 108 minors 98 –104 contracts regarded as binding on minors 98 –101 Family Law Reform Act 1969 98 guarantees 104 restitution 103 – tortious liability of 102 –3 voidable contracts 101–2 Minors’ Contracts Act 1987 102, 103 miscarriage 119 misconduct 205 misfeasance misrepresentation 166, 184, 195, 231–56 establishing 242 exclusion of liability for 252 fact of the inducement 235– 585 www.downloadslide.com INDEX misrepresentation (continued ) mere representations 231 nature of the inducement 232 – nature of the misrepresentation 239 – 42 remedies available for 243 –52 remedies available for – summary 252 Misrepresentation Act 1967 128, 132, 240, 241, 249–51, 542 negligent misrepresentation under section 2(1) 249–51 section 2(1) 241 section 2(2) 251 section 187, 195 misrepresentation of fact 235 – see also silence mistake 178 – 9, 257–98, 473 – 4, 482–5 actions for payments made under 482 –5 at common law 259 – 86 consensus ad idem 257, 259 correction by construction 178 – in equity 287–93 postponement of limitation period in cases of 473– as to nature of document signed 294 –5 mistake at common law, overview 284 –5 mistake in equity 287– 93 rectification 292 –3 refusal of specific performance 293 rescission 287–92 mistakes of law 259 – 60 mitigating strict performance rule divisible contracts 375 tender of performance 374 –5 mitigation of loss 448 – mode of acceptance 28 – modern era – consumer protection contracts of adhesion 7– social protectionism –7 moneys paid 478 – 82 Monopolies and Restrictive Practices (Inquiry and Control) Act 1948 361 monopoly 361 moral turpitude 364 mother of all torts move of consideration from promisee 65 – mutual mistake 273 – 4, 259, 273 – mutuality 92, 468 – narrower ground 503 –5 natural persons’ capacity 97 –104 deviation from model 97 drunks 98 mentally disordered persons 98 minors 98–104 necessaries 98, 99 naturali ratione inutilis 263 586 nature of an offer 16 –17 nature of document signed 294 –5 see also mistake nature of exemption clause 169 –71 nature of inducement 232 – silence as misrepresentation of fact 235 – statements of intention 234 – statements of law 232 –3 statements of opinion 233 – nature of misrepresentation 239 – 42 common law negligent misrepresentation 240 –1 fraudulent misrepresentation 239 – 40 innocent misrepresentation 241 Misrepresentation Act 1967 241 nature of the promise 80 –2 nature of remedy 466 –7, 471 NCB Car Parks Ltd (NCP) 232 –3 necessaries 98, 99 minors’ contracts for 99 –100 necessity 533 – negligence 183 – 4, 191, 192 negligent misrepresentation 249 –51 see also Misrepresentation Act 1967 negligent misstatement 542, 543 negotiability 557 nemo dat quod non habet 258, 277, 279, 538 nineteenth-century law of contracts – no consideration see past consideration no win no fee agreements 338, 540 non est factum 294 –5 non-absolute assignment 559 – 63 non-acceptance of goods 434 –5 non-assignable rights 566 –7 express exclusion of assignability 566 personal contracts 566 –7 public policy 567 rights of action 566 non-delivery of goods 434 non-disclosure of principal 536 – 9, 542 agent liability 542 doctrine of 536 – effect of doctrine of undisclosed principal 538 – factors preventing operation of doctrine 538 general 536 – non-feasance non-occurrence of contract’s central event 403 – non-operation 133 non-performance 155, 208 Norman Conquest not relying on illegal contract for recovery 346 –7 notice 562, 564 notice incorporation 166 –72 degree of notice 167–71 need for contractual document 166 –7 notice in writing 41 www.downloadslide.com INDEX notices 18 notion of a bargain 10 –11 novation 557– nudum pactum 10, 60 nullity 334 obiter dictum 20, 79, 115, 182, 306 object of the exercise 295 objective test approach 273, 274 objectivity –10 Occupiers’ Liability Act 1957 191 occurrence of absolute or non-absolute assignment 559–63 absolute assignment 559 non-absolute assignment 559 – 60 offers 16 – 26 communication 25 – compared with other transactions 17–25 nature 16 –17 Office of Fair Trading 157, 222, 361 officious bystander test 137–9, 272, 401 omissions 136 on the cards 443 operation of doctrine of frustration 407– frustration expressly provided for 408 self-induced frustration 407– operation of law leading to termination of agency 544 bankruptcy 544 death 544 frustration 544 unsound mind 544 opinion 233 – options to purchase land 116 –18 ordinary injunctions see prohibitory injunctions original party cancellation or variation of contract 519 ostensible authority 530 ousting courts’ jurisdiction 93, 339 outcome of decision in Williams v Roffey Bros on Pinnel’s case 85 – outcomes of privity of contract, actions against promisor for damages 495 –7 overdraft 559 overriding oral undertaking 186 oversight 127, 138 Package Travel, Package Holidays and Package Tours Regulations 1992 152, 496, 523 packaging 143, 155 pari delicto 332, 344 –5 parol evidence rule 132 –7 part-payment of debt 76 – 88, 474 common law rule 76 – effect of decision in William v Roffey on 85–7 exception to rule in Pinnel’s case 78 – 85 part-performance 114, 115, 116, 119, 151, 374, 487– partial failure of consideration 480 –2 parties’ actions leading to termination of agency 544 parties in pari delicto 332, 344 –5 parties to contract and restraint 352 –3 past consideration 62 –5 patents 187, 556 payments under mistake of law 482 –5 peace of mind 459 – 60, 461–2 penalties 453 – perfect transfer 562–3 performance of contract 371–7 basic rule of performance 371–3 mitigating strict performance rule 373 – time of performance 375 –7 see also breach of contract performance of existing obligations 69 –76 existing contractual duties owed to third parties 74–6 plaintiff bound by existing contractual obligations 71– public duty imposed by law 69 –71 performance interest 503 – personal capacity 542 personal contracts 566 –7 personal liability incurred by agent 545 personal property 507–10 Pinnel’s case 76 – 87, 395 effect of decision in Williams v Roffey Bros 85 –7 exceptions to the rule in 78 – 85 plaintiff bound by existing contractual obligation 71–4 pledges 150 PoA see powers of attorney possibilities for individuals in contract law 162 post-operative complications 449 postal rule 39 – 41, 564 postponement of limitation period 473 – potential interference 98 power to enter into contract 97 powers of attorney 545 Powers of Attorney Act 1971 545 precedent of condition 50 –1 present-day law of contracts – presumed agency 534 presumed undue influence 304 –5, 306 –12 Class 2A 305, 307– Class 2B 305, 308 –11 rebutting presumption 312 requirement of manifest disadvantage 310, 311–12 presumption 133 presumption of advancement 343, 346 prevail clause 37 Prevention of Fraud (Investments) Act 1958 334 previous course of dealing and incorporation 172– price maintenance agreement 453 price watch scheme 426 primary obligation 377– 8, 380, 388 587 www.downloadslide.com INDEX principal, competence of 536 principal and agent agreement 539 – 41 duties owed by agent to principal 539 – 40 duties owed by principal to agent 540 –1 principal and third party situation 536 – where principal is disclosed 536 where principal is undisclosed 536 –9 principal’s settlement with agent 542 principle of sufficient consideration 67– 87 adequacy of consideration 67– must be valuable 67 sufficiency of consideration 68 – 87 principles for assessing damages 420 –30 actions for an agreed sum 429 –30 restitutionary loss 422 –9 principles of severance 363 – prior negotiations 175, 177– priority of assignments 564 –5 privity of contract 135, 184 –5, 493 –527 avoiding doctrine of 498 – basic effect of 495 effect of 495– exceptions to 499 –513 see also separate entry general rule 493 – promisee and specific performance 497 reform of 513 –25 total failure of consideration 498 undertakings where promisor does not sue 497– privity of contract, exceptions to 499 –513 allowing third party to claim under contract 500– probity 75 problem of frustration in leases 405 –7 prohibitory injunctions 471–2, 510 promisee and specific performance 497 promises made to third party debtors 120 promisor, defences available to 519 –21 promissory estoppel 49, 73, 76, 78 – 85, 117 promissory note 521 promotional material 546 proper contract 31 proper execution 114 property recovery 344 –7 proprietary estoppel 117 prostitution 341 protection of property 123 protection of third parties in exemption clauses 510–13 protectionism –9 provisions of existing contractual obligation 71– provisions for remuneration and commission 547– transactions concluded after termination of agency contract 548 – transactions concluded during agency contract 547– public conscience criterion 342– public duty imposed by law 69 –71 588 public interest and restraint 353 Public Passenger Vehicles Act 1981 186 public policy 337– 41, 567 and illegality 337– 41 puff 17, 95, 231 putting bank on inquiry 319 qualifying debt 150 quality of subject matter of contract 264 –72 see also common initial mistake quantum meruit 117, 344, 374, 375, 478, 486 – quasi-contract 104, 117 quasi-contract and law of restitution 477– 89 actions for payments made under mistake of law 482–5 actions to recover moneys paid 478 – 82 claims in quantum meruit 486 – unjust advantage 477– quid pro quo 67 rate-capping 482 ratification 534 – actions capable of 536 agent contracted as agent 535 in toto 536 knowledge of material facts 536 principal must be competent 536 principal must exist 535 ratio decidendi 267 reasonable identification of principal 536–9 reasonable notice 167–71 reasonableness 195 –208, 352 – reassignment 560 rebutting presumption of undue influence 312 recklessness 240, 336 recovering moneys paid 344 –7, 410, 478 – 82 actions for 478 – 82 illegal contract has been withdrawn from 345 – illegal contract is not relied on for recovery 346 –7 moneys paid in void contract 482 parties are not in pari delicto 344 –5 total failure of consideration 479 – 82 rectification 117–18, 133, 292 –3 redemption 360 redress 293 reduction of contract into writing 129 –30 reference to market for damage assessment 433 – available market 435 – breach caused by non-acceptance 434 –5 breach caused by non-delivery 434 referential bids 22 reform of privity of contract 513 –25 benefits and defences 515 creation of duties in third parties 515 –16 double-intention criteria 516 www.downloadslide.com INDEX reform of privity of contract (continued) Law Commission Report No 242 516 – 25 variation and cancellation of contracts 515 refusal of specific performance 293 Registrar of Companies 105 regularity 189 regulatory control of unfair terms 210–12 reimbursement 154 – reinstatement basis 430 –3 rejection 49 –50 relating back 534 reliance 237– misrepresentation must be relied on 237– representee knows the truth 238 – representee unaware of misrepresentation 239 reliance loss 420 –2 reliance on representation 531 remedies for breach of contract 417–90 common law remedy of damages 419 – 65 equitable remedies and limitation of actions 466–76 quasi-contract and law of restitution 477– 89 remedies in illegality 341–51 general effect of illegality 341– Law Commission and reform of illegality defence 347–51 recovery of money or property 344 –7 remedies for misrepresentation 243–52 damages 248–51 rescission and indemnity 244– remoteness of damages 430–1, 441– remuneration for agent’s services 540, 547– rental agreements 152 reparation 249 representation 128 –9, 131–2, 135, 530 –1 repudiation prior to performance 377– 82 repudiatory breach 388 reputation 458 requests for information 24 –5 see also offers requirement of manifest disadvantage 310, 311–12 requirement of mutuality 468–9 requirements of equitable assignment 560 –3 requirements for exercise of severance 363– agreement unaltered by act of severance 364–5 ‘blue pencil’ rule 364 illegality not main part of contract 364 requirements of reasonableness 195–208 requiring contract to be in writing 114 –18 contracts for sale of land 114 –18 enforcement of requirement 114 res extincta 260 –3, 269, 288 res sua 263 – 4, 288 rescission 102, 132, 243 – 8, 285–92, 395 – bars to rescission as remedy 245 –7 damages in lieu of rescission 247– and indemnity 244 – reservation of title clause 346 resiling from decision 358 restitutio in integrum 244 –6, 287– 8, 304, 323, 480 restitution 103 – 4, 117, 477– 89 see also quasi-contract and law of restitution restitutionary loss 422 – restitutionary quantum meruit actions 486 –7 contracts discharged by breach 487 frustrated contracts 486 services rendered in contemplation of contract 487 void contracts 486 restraint of trade contracts 336, 351– 4, 551 general principles 351–2 reasonableness of restraint 352 – restriction of exemption 186 Restriction of Offensive Weapons Act 1961 19 resulting trust 343 reversion 81 revocation 45 – bilateral contracts 45 –7 collateral contracts 49 unilateral contracts 48 – right of stoppage in transitu 541 right to affirm contract 382 – right to treat contract as discharged 386 – rights of action 566 rights of commercial agents 546 –7 rights and liabilities of third parties 491–568 agency 528 –55 assignment of contractual rights 556 – privity of contract 493 –527 rights of principals 546 –7 Road Traffic Act 1960 186 Road Traffic Act 1988 186, 500 rogues 277– 80, 281– role model of natural person 97 Rolls-Royce 66, 145, 461, 502, 508 Romalpa clause 346 romantic liaisons 95 Rooney, Wayne 101 Rotterdam Court 160 Royal Institute of British Architects 216 royalties 101 rule of common law 75 –7 rule in Dunlop v Lambert 502 – rule that consideration is not past 62 –5 exceptions to past rule 63 –5 executory and executed consideration 62 past consideration 62 –3 sale of business contracts 359 sale by description 141– sale of goods 192, 195 Sale of Goods Act 1893 413 589 www.downloadslide.com INDEX Sale of Goods Act 1979 20, 99, 140, 141– 8, 154, 189, 192, 195, 277, 389, 430, 495, 525 implied condition as to description 141–2 implied condition as to fitness of purpose 147 implied condition as to sample 148 implied condition as to satfactory quality 140, 142 –7 implied terms as to title 141 Sale and Supply of Goods Act 1994 140, 146 –7, 158, 372, 373 Sale and Supply of Goods to Consumers Regulations 2002 140, 143, 147, 156 –7, 188 sample 148 sanctity of marriage 340 sanity 98 satisfaction 394 –5 satisfactory quality 140, 142 –7 schedule of completion 25 Scott v Avery clause 339 Sea Containers Ltd 430 sealing of documents 113 secondary contracts 209 seconds 144 security 559 self-employment 545 self-induced frustration 407– separate personalities 528 services rendered in contemplation of contract 487 services supply contracts 148 –9 severance 363 – doctrine of 220 general principles 363 – requirements for exercise of 364 – sexually immoral contracts 340 –1 signature 166 significant imbalance 214 –16 silence 38–9, 235 –6 as misrepresentation of fact 235 – simple contract: actions 473 Single European Act 1986 210 skill 130–2, 540 skimped performance 425, 426 small print 166, 197 sobriety 97 social arrangements 91–2 see also domestic arrangements social prejudice 97 social protectionism –7 solicitor’s responsibilities when advising wife 321–3 solus agreements 359 – 61 sources of information 359 special circumstances 38 –9 special knowledge 130 –2 special loss 442 –3 special relationship 241 590 speciality contracts 60 specialty contract: actions 473 specific performance 293, 466 –71, 497 damages in lieu of 472 damages must not be adequate remedy 467– equity will not assist volunteer 471 exercise of discretion 469 –71 mutuality 468 –9 nature of the remedy 466 –7 order – factors considered when making 467–71 promisee and 497 speculative damages 458 – 62 stalemate 34 standard-form contracts 6, 7– 8, 51, 93, 180, 193, 221 standing-offer tenders 21 state paternalism state regulation of unfair terms 221–2 statement 130 statements of intention 234 –5 statements of law 232–3 statements of opinion 233– status of marriage and family and prejudicial contracts 340 status quo ante 244 Statute of Frauds 117, 118 –23, 396 guarantee part of larger transaction 122 –3 indemnities 121–2 promises made to third party debtors 120 section 118–23 statute and terms implied by law 137, 140 –1 statutory assignment 563– essentials of 564 general form of 563 – statutory corporations 104 statutory exceptions allowing third party to claim 500 Bills of Exchange Act 1882 500 Companies Act 2006 500 Married Women’s Property Act 1882 500 Road Traffic Act 1988 500 statutory exceptions to past consideration rule 64 –5 Bills of Exchange Act 1882 65 Limitations Act 1980 64 statutory limitations on exemption clauses 186 –210 restriction of exemption 186 Unfair Contract Terms Act 1977 187–210 stoppage in transitu 541 strict compliance 396, 399 strict free on board contracts strict performance rule 371–3 strict performance rule, mitigating 33 –5 doctrine of substantial performance 373 – partial performance 374 subcontracting 523 subject matter 260 –72, 402 –3 subject to contract 30–1, 35 – 6, 55, 116 www.downloadslide.com INDEX subject to equities 565 – subpoena 69 substantial performance 373 – substantial remedy 223 substitution 157 Suez Canal 404 sufficiency of consideration 68 – 87 part-payment of debt 76 – 87 performance of existing obligations 69 –76 suicide 336 supervening events 407– supervening illegality 405 supplier specifications 551–2 supply of goods contracts 148 Supply of Goods (Implied Terms) Act 1973 198 Supply of Goods and Services Act 1982 140, 148– 9, 192 contracts for supply of goods 148 contracts for supply of services 148 – supposition 47 Supreme Court Act 1981 472, 510 suspension of Limitation Act by virtue of disabilities 473 suspensory doctrine 81–2 taking subject to equities 565 – tangible property 562 –3 tax liability in respect of damages 438 –9 tender of performance 374 –5 tenders 20 –2 termination of agency 544 –5 by actions of parties 544 by operation of law 544 irrevocable authority 545 termination of commercial agency 549 compensation 549 –51 termination of offers 44 –51 death 51 failure of condition precedent 50 –1 lapse of time 50 rejection 49 –50 revocation 45 –9 terms of the contract 127– 64, 275 classification of contractual terms 157– 61 express terms 128 –36 implied terms 136 –57 unilateral mistake as to 275 terms subject to requirement of reasonableness 192–5 contracts for transfer of goods and of hire 195 liability arising in contract 192 –3 misrepresentation 195 negligence 192 sale of goods and hire purchase 195 unreasonable indemnity clauses 193 –5 Thatcherism Theft Act 1968 20 third parties 491–568 alteration to position 531 and company capacity 109 contractual duties 74 – creation of duties in 515 –16 as debtors 120 effect of undue influence on 313 –23 exceptions under privity of contract 500 –25 and exemption clauses 184 – intervention of 246 –7 relationship with agent 542 –3 settlement with agent 541 to a contract 491– 568 undertaking where not sued 497– third parties, allowing to claim under contract 500 –6 agency 500 assignment 500 Law of Property Act 1925 506 rule in Dunlop v Lambert 502 – statutory exceptions 500 trusts 501–2 third parties, imposing obligations on 506 –13 interest in land 506 –7 interest in personal property 507 –10 protecting third parties in exemption clauses 510 –13 third party actions on contracts, effects of 513 ticket cases 22 –3 time – question of when awarding damages 436 – time of discharge 410 time of performance 375 –7 time-related costs 208 timing 129, 171–2 of notice 171–2 timing of communication of offers 25 – title 141, 263 – mistake as to 263 – tort actions 498 – tort of deceit 542, 543 tortious liability of minors 102 –3 total failure of consideration 117, 479 – 82, 498 converting partial to total failure of consideration 480 –2 general principles 479 partial failure of consideration 480 –2 totally ineffective terms 191–2 contracts for transfer of goods and of hire 192 manufacturers’ guarantee 191 negligence 191 sale of goods and hire purchase 192 terms governed by Consumer Protection Act 1987 192 touch and concern the land 506 Trade Descriptions Act 1968 7, 142 591 www.downloadslide.com INDEX trade practice, standard form contracts based on 206 –7 Trading Standards Department 156 transactions ‘calling for an explanation’ 311–12 concluded after termination of agency contract 548– concluded during agency contract 547– transfer of goods 192, 195 transfer reversal 427 treating contract as discharged 386 – trespass trusts 501–2, 523 – uberrimae fidei 236, 243 ultra vires 105 –7 avoiding effects of 107 unanimity 27 unauthorised acts 542 –3 unavailability of contract’s subject matter 402 –3 uncertain performing contract 52 –5 uncertain yet to be performed contract 52 undertakings where third party not sued 497– undisclosed encumbrance 141 undue influence 299 –330 effects of 323 –5 see also duress Unfair Contract Terms Act 1977 8, 142, 149, 150, 187–210, 522, 525 anti-evasion provisions 208 –10 business liability 188 – 91 liability arising in negligence 191 requirements of reasonableness 195 –208 requirements of reasonableness, terms subject to 192–5 terms rended totally ineffective 191–2 unfair terms, extent of regulatory control 210 –12 Unfair Terms in Consumer Contracts Regulations 1994 210 –23 assessing whether contract term is unfair 212–20 effect of term being deemed ‘unfair’ 220 extent to which Regulations control unfair terms 210 –12 Late Payment of Commercial Debts (Interest) Act 1998 223 state regulation of unfair terms 221–2 Unfair Terms in Consumer Contracts Regulations 1999 154, 180, 210, 211 unilateral contracts 29, 48 – unilateral discharge 397 592 unilateral mistake 259, 272, 274 – 85 as to identity of person contracted with 275 – 85 as to terms of contract 275 unjust advantage 477– unjust enrichment 292, 478 unlawful manner of performance 333 –5 unreasonable indemnity clauses 193 – Unsolicited Goods and Services Act 1971 28, 156 unsound mind 544 urgency 533 use of quantum meruit within contract 487– acceptance of part-performance 487– implied agreement to pay 488 usual authority 531–3 use of term 530 utmost good faith 236 valid statutory assignment 564 valuable benefit 410 –12 value added tax see VAT value of consideration 67 variation of contract 395–6, 515, 519 varieties of exemption clause 209–10 VAT 551 vertical agreements 359– 61 ‘very thing’ principle 350 vitiation of contract 231– 68 void ab initio 244 void contracts 482, 486 recovering moneys paid in 482 voidable contracts 101–2 volition 307 voluntary assignment at common law 557– voluntary assignment in equity 558 – 63 chose in action 562 –3 legal and equitable nature of chose in action 558 whether or not assignment is absolute 559 – 63 volunteer – equity will not assist 471 vulnerability 307– waivers 390, 396 warranties 157– wear and tear 147 Which? 221 wider principle 319 wills 561 withdrawing from illegal contract 345 – worst practice 318 written assignment 564 ... The effect of the doctrine of privity of contract Avoiding the doctrine of privity of contract Exceptions to the doctrine of privity of contract Reform of the doctrine of privity of contract 493... Library Library of Congress Cataloging-in-Publication Data Richards, Paul, 1951– Law of contract / Paul Richards – 10th ed p cm ISBN 978-1-4082-5361-8 (pbk.) Contracts – England Contracts – Wales... bookshops or order online at: www.pearsoned.co.uk /law premium Tenth edition Law of Contract PAUL RICHARDS Head of the School of Law, University of Huddersfield Pearson Education Limited Edinburgh